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Indian Laws - Case Laws
Showing 1 to 20 of 71 Records
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2018 (5) TMI 2176 - DELHI HIGH COURT
Seeking release of the attached property or alternatively, to permit the respondents to use/occupy such property on such terms and conditions as this Court may deem fit - HELD THAT:- Keeping in view of the facts and circumstances of the case, it is directed that the property would remain attached subject to further orders of the Court, however, the applicants would be permitted to occupy the said property on deposit of use and occupation charges at the rate of Rs.40,000/- per month in advance with the Registrar General of this Court - Application disposed off.
Seeking release of his passport and permission to travel outside the country from 28.05.2018 to 05.06.2018 - HELD THAT:- The respondent has already been discharged by order dated 15.05.2017 and there is no stay on the operation of the entire order, however, stay was limited insofar as the order related to the release of the properties which were attached - Keeping in view of the fact that the original record of the Trial Court has been received and is with the Registry, the Registry is directed to release the passport of the respondent No.1 to him. Respondent No.1 is permitted to travel abroad strictly as per the itinerary furnished to the Court and, on his return, he shall duly intimate the Department of his return. The respondent shall not do anything which shall prejudice either the present proceedings filed by the petitioner or the evidence. Henceforth, the petitioner shall seek permission of this court for any travel out of the country - Application disposed off.
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2018 (5) TMI 2174 - BOMBAY HIGH COURT
Reinstatement of Behram Ardeshir (Ardeshir) as an executor after his renunciation - reversion to a prior state of affairs where Ardeshir had renounced executorship and Sardal continued alone - HELD THAT:- Simply on the ground of physical and mental incapacity Sardal must be removed at once. His acts as an executor are being directed entirely by his son and this is plainly apparent from what has transpired in Court - Vasant Narayan Sardal is removed as an executor but in consideration of his age and health, I will, for the foregoing observations notwithstanding, direct that this removal has to be read on account of his infirmity and advanced years and his demonstrable incapacity to discharge the duties required of an executor appointed under a Will.
Notice of Motion will have to be allowed. Those Consent Terms were, on the face of it, not such as could have been taken in a Testamentary Suit pending probate. They were directly contrary to the terms of the Will. Very often even probate proceedings are compromised but where in that compromise probate is accepted what then follows is a family arrangement not inconsistent with the grant or with the title that has passed through grant. In the present case, there was no possibility of any such family arrangement or compromise following on the grant of probate because that probate completely excluded the surviving members of the family.
Notice of motion allowed.
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2018 (5) TMI 2173 - DELHI HIGH COURT
Seeking a direction in favour of the applicant for payment of dues under the Employees Provident Fund & Miscellaneous Provisions Act, 1952 - priority of dues against the statutory as well non-statutory secured and non-secured debts including on assets subject to mortgage or pledge - HELD THAT:- In the present case, as already noted by this court, the OL invited claims on 23.01.2004. Thereafter the claims were processed and payments were released in favour of those whose claims were accepted by order dated 27.09.2005. Reference may be had to the said order dated 27.09.2005. The said order noted that there are 770 workmen who have lodged their claims before the OL. Total of these claims add up to Rs.5.04 crores. The court accepted that the claims of the worker would to the tune of Rs.3.40 crores. There were claims of three secured creditors, namely, Canara Bank, HFC and Essenda Finanze Pvt. Ltd. which were for Rs.374 lacs, Rs.120 lacs and Rs.4 lacs. Noting that the OL has Rs.3.86 crores, the court ordered distribution of the fund to the secured creditors and workers on pari passu basis in terms of Sections 529 and 529A of the Act.
In the rejoinder that was filed by the applicant to the reply of the OL, the applicant has attached a copy of a communication dated 18.06.2004 which was allegedly sent to the OL. Unfortunately this document has been filed alongwith the rejoinder and the OL has not been able to respond to the same. There is also nothing to show that this document was served on the OL. It is further stated in the letter that the dues are likely to the tune of Rs.50 lacs, which are pending and are not deposited by the respondent company. As already noted, this letter was not in response to claims invited by the OL. Even if such a letter had been received by the OL, it cannot be a substitute for the statutory procedure which exist for inviting claims from the creditors of the respondent company.
A liquidator has to give notice inviting creditors, who have not proved their debts. As per Rule 151, the affidavit proving a debt shall contain or refer to a statement of account and shall be in Form 66.
The applicant is only entitled to the amount that is now left with the OL, namely, a sum of Rs. 5,76,162/- or about. The applicant cannot be permitted to disturb the position/steps which have been taken by this court way back in 2005. The applicant has merrily taken five years to file its first application attempting to prove its dues. Thereafter, the applicant had withdrawn the said application and has now filed the present application in 2015. In view of the settled legal position, the applicant would be entitled to only the amount now remaining with the OL.
Application allowed.
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2018 (5) TMI 2172 - DELHI HIGH COURT
Seeking grant of Regular Bail - misappropriation of money for illegal monetary gains after demonetization - Conspiracy with Ashish Kumar, Bank Manager of Kotak Mahindra Bank, one Chartered Accountant and one mediator who used to bring money to the bank to earn huge profits by converting black money in the form of old demonetized currency into new currency notes - HELD THAT:- From the statements of these two witnesses of the prosecution, it is evident that 10% commission of Yogesh Mittal was deposited in the various firms from where approximately INR 8 crores was transferred to the two firms of petitioner namely Shrinivas Enterprises and Jai Jinendra Sales Corporation over to the firms/companies of Govind Babu and Naveen Somani in discharge of the liability of Yogesh Mittal. Petitioner, if at all is a beneficiary for a sum of INR 2 lakhs the petitioner has no role in the deposit of cash in the accounts of Raj Kumar Goel or Yogesh Mittal from which demand drafts were made which were recovered from Kamal Jain, CA of Rohit Tandon.
Evidence is documentary in nature and the trial is likely to take some time. Hence, this Court deems it fit to grant bail to the petitioner. It is, therefore, directed that the petitioner be released on bail on his furnishing a personal bond in the sum of INR 1 lakhs with one surety of the like amount to the satisfaction of the learned Trial Court/CMM further subject to the condition that the petitioner will not leave the country without prior permission of the Court concerned and in case of change of residential address the same will be intimated to the Court concerned.
Petition disposed off.
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2018 (5) TMI 2169 - SUPREME COURT
Rejection of claim for grant of parity to Assistant Public Prosecutors, in the matter of retirement age, with Public Prosecutors in the State - HELD THAT:- The fact that Assistant Public Prosecutors are considered as officers of the Court as in the case of Public Prosecutors, can be no basis to equate them with the judicial officers whose method of appointment and conditions of service are distinct. The issue on hand cannot be decided merely on the basis of comparison of the nature of duties and functions of Public Prosecutors and Assistant Public Prosecutors.
As regards the disparity in the age of superannuation of the Assistant Public Prosecutors appointed on or before 31st March, 2013 and those who joined on or after 1st April, 2013, the said contention is also devoid of merits inasmuch as the conditions of service of the concerned set of Assistant Public Prosecutors is distinct. In that, those appointed on or before 31st March, 2013 are governed by the statutory pension scheme under the Service Rules as in the case of other government employees; and those appointed on or after 1st April, 2013 are governed by the new Contributory Pension Scheme made applicable to all the government employees and not limited to Assistant Public Prosecutors. Assistant Public Prosecutors are only a small Section of the genre of State Government employees-be it appointed prior to 31st March, 2013 or on or after 1st April, 2013, either governed by statutory Pension Scheme or the new Contributory Pension Scheme, as the case may be. Be it noted, the cut-off date of 1st April, 2013 for introducing the new Contributory Pension Scheme by the State Government is not the subject matter of challenge in the present case.
The Respondent State is agreed upon that accepting this offer would create anomaly, discrimination and hardship to the rest of the government employees appointed prior to 1st April, 2013 as they all will retire at the age of 56 years. In any case, this is a policy matter. It is best left to the State Government. It will be a different matter if the Government accepts the offer given by the Appellant on behalf of its members.
This appeal is devoid of merits and hence the same is dismissed.
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2018 (5) TMI 2162 - SC ORDER
Dishonour of Cheque - settlement arrived at between the parties - HELD THAT:- The settlement as it forms a part of the order, makes it clear that the parties shall abide by the same and not create any impediment in its implementation.
It is also agreed that as there is a settlement, this Court may quash the criminal proceedings initiated by the respondent against the appellant being FIR No. 239 dated 17.6.2007 instituted for the offences punishable under Sections 406, 420, 465, 467, 468, 471 and 120-B, IPC and FIR No. 43 dated 30.4.2016 for the offences punishable under Section 174-A, IPC, and also the Complaint Nos. 181 dated 30.5.2017 and 182 dated 30.5.2007 both instituted under Section 138 of the N.I. Act by the appellant against the respondent. All proceedings are accordingly quashed.
As the FIRs and the complaint petitions have been quashed, the Passport of Iqbal Singh Sabharwal shall be returned to him - appeal disposed off.
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2018 (5) TMI 2160 - HIMACHAL PRADESH HIGH COURT
Levy of Entertainment Tax - carriage of passengers on aerial ropeway to Naina Deviji Temple under the Himachal Pradesh Entertainment Duty Act, 1968, more particularly, under the amendment, which was carried vide H.P. Entertainments Duty (Second Amendment) Act, 1999 (Act No. 3 of 2000) - whether the State Government has the competence to issue notification imposing entertainment tax on ropeway? - invocation of principle of ejusdem generis.
HELD THAT:- The aerial ropeway of the petitioner is providing entertainment and, therefore, the only question that remains for consideration is whether in the absence of any provision in the H.P. Aerial Ropeway Act, the State by amending the Entertainments Duty Act can recover the same.
As observed by the Hon'ble Supreme Court, only Entries 45 to 66 of the Seventh Schedule are those that can be taxed. The Aerial ropeway Act was enacted to authorize, facilitate and regulate the construction and working of aerial ropeways in Himachal Pradesh without there being any provision of levying tax of the instant kind, whereas on the other hand, the Entertainments Duty Act was enacted to provide for levy on entertainment duty in respect of admission to public entertainments.
The mere fact that no amendment was made in the Aerial Ropeway Act and the amendment was made in the Entertainments Duty Act is inconsequential as the entertainment duty in respect to admission to public entertainment could only be taxed under the Entertainments Duty Act, as such, we find it expressly difficult to agree with the view of the learned Single Judge of High Court of Uttrakhand, who only on the basis that no amendment had been carried in the United Provinces Aerial Act, 1922 had quashed the amendment.
It is more than settled that as a general rule when two different words are used by a statute, prima facie one has to construe different words as carrying different meanings. Even though at sometime two different words are used in one and the same statute to convey the same but i.e. exception rather than the rule. The word "entertainment" has to be understood in the contest that was intended by the legislature with respect to the Entertainments Duty Act, keeping in mind the purpose for which the statute was enacted - there is no provision in the H.P. Aerial Ropeway Act to levy tax or duty as this Act only authorizes to facilitate and regulate the construction and working of aerial ropeways in Himachal Pradesh, whereas on the other hand, Entertainments Duty Act has been specially enacted by the State under Entry 62 of List-II for imposition of taxes and duties on entertainments.
The aerial ropeway is providing entertainment and, therefore, in such circumstances, the doctrine of ejusdem generis cannot be pressed into service to defeat the dominant statutory purpose of the entertainment tax. Merely because it is the aerial ropeway, it does not mean that it can only be taxed under the Aerial Ropeway Act and not under the Entertainments Duty Act.
Even otherwise, the definition of "entertainment" as originally defined and even thereafter it was amended would show that the same deals with all different aspects of entertainments like exhibition, performance, amusement, game, sport or race or lastly aerial ropeway. Thus, once each one of the words carries a separate and distinct meaning then obviously, the principle of ejusdem generis cannot be invoked.
Petition dismissed.
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2018 (5) TMI 2159 - SUPREME COURT
Correctness of Grant of bail to accused - Whether there are any supervening circumstances which would warrant the cancellation of the bail granted by the High Court? - Rape - false promises of marriage - complainant alleged that the Accused had been making false promises of marriage to her and was exploiting her continuously - HELD THAT:- In a consistent line of precedent this Court has emphasised the distinction between the rejection of bail in a non-bailable case at the initial stage and the cancellation of bail after it has been granted. In adverting to the distinction, a Bench of two learned Judges of this Court in DOLAT RAM VERSUS STATE OF HARYANA [1994 (11) TMI 424 - SUPREME COURT] observed that The satisfaction of the court, on the basis of material placed on the record of the possibility of the Accused absconding is yet another reason justifying the cancellation of bail. However, bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the Accused to retain his freedom by enjoying the concession of bail during the trial.
The Accused had the benefit of an order granting him anticipatory bail. The grant of anticipatory bail was cancelled principally on the ground that he had not disclosed the pendency of a prosecution against him in the 2G Spectrum case. The Court has been informed during the course of the hearing that the said prosecution has ended in an acquittal. Regular bail was granted by the High Court on 17 November 2017 in the present case. The second FIR which was lodged on 22 November 2017 is not, in our view, a supervening circumstance of such a nature as would warrant the cancellation of the bail which was granted by the High Court. The learned Counsel appearing on behalf of the Accused has submitted that the lodging of the second FIR, four days after the order of bail is merely an attempt to bolster a case based on a supervening event and that it suffers from vagueness and a complete absence of details.
The order of the High Court allowing the application for bail cannot be faulted. Moreover, no supervening circumstance has been made out to warrant the cancellation of the bail. There is no cogent material to indicate that the Accused has been guilty of conduct which would warrant his being deprived of his liberty.
The quantum of the personal bond shall stand enhanced to Rs. 10 lakhs - Appeal disposed off.
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2018 (5) TMI 2157 - CALCUTTA HIGH COURT
Issuance of process under Section 204 Cr.P.C. and subsequent proceedings - accused persons residing at a place beyond the territorial jurisdiction of the learned Magistrate - nature of enquiry in the matter of an accused who resides outside the territorial jurisdiction of the Court concern - Consequence of non-compliance with such requirement - Objection may be raised at the initial stage only or after much deliberation as well? - HELD THAT:- It is long standing settled principles of law relating to the mode of exercising a statutory power by a Court when such power is conferred for the first time upon it. Lord Jessel M.R. observed in Taylor v. Taylor, that when a statutory power is conferred for the first time upon a Court, and the mode of exercising it is pointed it means that no other mode is to be adopted.
Under the provisions of Section 190 Cr.P.C. the competent Magistrate may take cognizance of any offence, subject to the provisions of Chapter XIV Cr.P.C., any Chief Judicial Magistrate is empowered under Section 192 Cr.P.C. to transfer the case for inquiry after taking cognizance to a competent Magistrate subordinate to him. Needless to point out that under the provisions of sub-section (2) of Section 12 Cr.P.C., an Additional Chief Judicial Magistrate shall have all or any of the powers of a Chief Judicial Magistrate under Cr.P.C. or under any other law for the time being in force as the High Court may direct and the transferee Magistrate is under obligation to examine the complaint and his witnesses and only thereafter to issue the process - According to the settled principles of law, the amendment of sub-section (1) of Section 202 Cr.P.C. by virtue of Section 19 of the Criminal Procedure (Amendment) Act, 2005, is aimed to prevent innocent persons, who are residing outside the territorial jurisdiction of the Learned Magistrate concerned, from harassment by unscrupulous persons from false complaints. The use of expression "shall", looking to the intention of the legislature to the context, is mandatory before summons are issued against the accused living beyond the territorial jurisdiction of the Magistrate.
Nature of enquiry to be undertaken by the learned Magistrate under sub-section (1) of Section 202 Cr.P.C. in the matter of an accused who resides outside the territorial jurisdiction of the Court concern - HELD THAT:- Keeping in mind the object sought to be achieved by way of amendment of sub-section (1) of Section 202 Cr.P.C., the nature of enquiry as indicated in Section 19 of the Criminal Procedure (Amendment) Act, 2005, the Magistrate concerned is to ward of false complaints against such persons who reside at far of places with a view to save them for unnecessary harassment and the Learned Magistrate concerned is under obligation to find out if there is any matter which calls for investigation by Criminal Court in the light of the settled principles of law holding an inquiry by way of examining the witnesses produced by the complainant or direct an investigation made by a police officer.
Whether non-compliance of such enquiry in terms of Sub-Section (1) of Section 202 (as amended) under Section 19 of the Criminal Procedure (Amendment) Act, 2005 will invalidate or vitiate the order of process so issued? - HELD THAT:- It has already been settled that when an order of issuing summon is issued by a learned Magistrate against an accused who is residing at a place beyond the area in which he exercises his jurisdiction without conducting an enquiry under Section 202 Cr.P.C., the matter is required to be remitted to the learned Magistrate concerned for passing fresh orders uninfluenced by the prima facie conclusion reached by the Appellate Court.
Whether objections with regard to non-compliance of the amended provisions of sub-section (1) of Section 202 Cr.P.C. as incorporated by virtue of Section 19 of the Criminal Procedure (Amendment) Act, 2005 may be raised at the initial stage only or after much deliberation as well? - HELD THAT:- The satisfaction of the learned Magistrate concerned that there is a sufficient ground for proceeding with the complaint either by way of examination of complainant and the witnesses or by the enquiry contemplated under Section 202 Cr.P.C., is a condition precedent for issuing process under Section 204 Cr.P.C. It is a preliminary stage and the stage of hearing the accused would only arise at a subsequent stage provided for in the later provisions of the Cr.P.C., or in other words, up to the stage of complying with the provisions of Section 204 Cr.P.C. the accused has no role to play. The question of making an application by the accused before the Learned Magistrate concerned for dismissal of the complaint under Section 203 Cr.P.C. or a reconsideration of the material available on record is impermissible on receipt of summons approaching the Court for the reason that by then Section 203 is over and the learned Magistrate concerned has proceeded further to Section 204 Cr.P.C.
There are no hesitation to arrive at a conclusion that the first occasion for an aggrieved accused to raise objection for issuing summon against him comes after the provision of Section 204 is invoked. Since Cr.P.C. does not contemplate a review of an order passed by the learned Magistrate concerned taking cognizance of an offence issuing process without there being any allegation against accused or any material implicating the accused or any contravention of the provisions of Sections 200 and 202, the remedy lies in invoking Section 482 Cr.P.C.
The scope of application of the amended provision of Sub-Section (1) of Section 202 Cr.P.C. as enacted under Section 19 of the Criminal Procedure (Amendment) Act, 2005, in case of offences punishable under Sections 138/141 of the Negotiable Instruments Act, 1881 - HELD THAT:- Taking into consideration the non-obstante clauses used in Sections 142, 142 (a), 143, 144, 145 and 147 of the said Act, 1881, as also finding that the scheme framed by the legislature in initiating a proceeding under Section 138 is different from that of the Cr.P.C., we arrive at an irresistible conclusion that the legislature has taken care of the interest of the complainant and the accused by exempting the complainant from facing the general rigors of Cr.P.C. at pre-summoning stage under Section 202 Cr.P.C. as amended under Section 19 of the Criminal Procedure (Amendment) Act, 2005 and protecting the accused by insisting upon the complainant to produce best possible stage at the pre-summon stage.
Thus, in cases falling under Section 138 read with Section 141 of the N.I. Act, the Magistrate is not mandatorily required to comply with the provisions of Section 202 (1) before issuing summons to an accused residing outside the territorial jurisdiction of the learned Magistrate concerned.
Application disposed off.
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2018 (5) TMI 2155 - DELHI HIGH COURT
Suspension of petitioner - accepting illegal gratification - after the period of ninety day, petitioner’s suspension was not reviewed - HELD THAT:- In the facts and circumstances of this case, it is deemed appropriate to dispose of this petition with direction to first respondent to pass a speaking order on petitioner’s Representation of 28th March, 2018 (Annexure P-8 colly.) within a period of two weeks from today and to convey its fate to petitioner within a week thereafter, so that petitioner may avail of the remedies as available in law, if need be.
Petition disposed off.
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2018 (5) TMI 2153 - SUPREME COURT
Functus Officio of Industrial Tribunal/Labour Court after Enforcement of Arbitral Award - whether the Industrial Tribunal/Labour Court is functus officio after the award has become enforceable, and is thus, prevented from considering an application for setting aside an ex parte award? - HELD THAT:- Under the statutory scheme, the Labour Court/Tribunal is empowered to follow its own procedure as it thinks fit, meaning thereby, a procedure which is fit and proper for the settlement of the industrial dispute and for maintaining industrial peace. If a party fails to attend the Court/Tribunal without showing sufficient cause, the Court/Tribunal can proceed ex parte and pass an ex parte award. The award, ex parte or otherwise, has to be sent to the appropriate Government as soon as it is made and the appropriate Government has to publish it within 30 days of its receipt. The award thus published becomes enforceable after a period of 30 days of its publication - In case of an ex parte award, whether the Court/Tribunal can set aside the same after 30 days of its publication, is the question to be considered.
That an ex parte award can be set aside in case the Court/Tribunal is approached within 30 days of its publication Under Section 17 of the Act, is no more res Integra. In Grindlays Bank Ltd. v. Central Government Industrial Tribunal and Ors. [1980 (12) TMI 181 - SUPREME COURT], it has been held that Tribunal can exercise such powers, if it thinks fit, in the interest of justice. It has also been held that the Tribunal is endowed with such incidental or ancillary powers as are necessary to discharge its functions effectively for the purpose of doing justice between the parties, unless there is any express indication in the statute to the contrary.
The Court has unambiguously held that it is the power and duty of the Tribunal exercising its ancillary and incidental powers to set aside an award which is a nullity. In that process, the Tribunal is governed by the principles of Order IX Rule 13 of the Code of Civil Procedure. However, apparently, on facts, the Court came to the conclusion that the power to set aside an ex parte award remained only till the award had become enforceable Under Section 17A, viz., before the expiry of 30 days from the date of its publication Under Section 17.
Merely because an award has become enforceable, does not necessarily mean that it has become binding. For an award to become binding, it should be passed in compliance with the principles of natural justice. An award passed denying an opportunity of hearing when there was a sufficient cause for non-appearance can be challenged on the ground of it being nullity. An award which is a nullity cannot be and shall not be a binding award - It needs to be restated that the Industrial Disputes Act, 1947 is a welfare legislation intended to maintain industrial peace. In that view of the matter, certain powers to do justice have to be conceded to the Labour Court/Tribunal, whether we call it ancillary, incidental or inherent.
The awards are remitted to the Labour Court for consideration as to whether there was sufficient cause for non-appearance of the management - application disposed off.
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2018 (5) TMI 2152 - SUPREME COURT
Bail not granted, directing that the trial be concluded as far as possible within six months - whether there should be timelines for completing investigation? - HELD THAT:- There is clear need for timelines for completing investigation and for having in-house oversight mechanism wherein accountability for adhering to laid down timelines can be fixed at a different levels in the hierarchy.
To determine whether undue delay has occurred, one must have regard to nature of offence, number of Accused and witnesses, workload of the court and the investigating agency, systemic delays. Inordinate delay may be taken as presumptive proof of prejudice particularly when Accused is in custody so that prosecution does not become persecution. Court has to balance and weigh several relevant factors. Though it is neither advisable nor feasible to prescribe any mandatory outer time limit and the court may only examine effect of delay in every individual case on the anvil of Article 21 of the Constitution, there is certainly a need for in-house mechanism to ensure that there is no undue delay in completing investigation.
It is well established that authorization for such detention has to be given having regard to the progress in investigation. Even a Magistrate cannot authorise detention in police custody beyond 15 days. After judicial custody for more than 90 days in serious cases stipulated therein and 60 days in other cases, there is a provision for mandatory default bail requirement if there is delay in investigation beyond the said period - the need to lay down timelines for completing investigation with a view to give effect to the mandate of Article 21 of the Constitution.
The learned ASG directed to represent the Union of India - the Ministry of Home Affairs directed to have inter action on the subject with all the Central and State investigating agencies on or before May 31, 2018 either on video conferencing or in person. The points emerging from the inter action may be recorded and examined by an appropriate committee which may constituted for the purpose.
Put up the matter for further consideration on 3rd July, 2018.
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2018 (5) TMI 2149 - DELHI HIGH COURT
Suit seeking declaration, partition, possession and injunction dismissed - dismissal on the ground that the same was barred by limitation - suit have not been properly appreciated and examined - principles of natural justice - HELD THAT:- The first and foremost argument of the learned counsel of the appellant is that the learned Single Judge ought to have followed the mandate of Section 26 of CPC and issued the summons to the respondents. By not doing so and dismissing the suit at the initial stage, he has acted in violation of the provisions of CPC and, therefore, the findings need to be set aside on this ground alone - There is no doubt that Section 26 of CPC requires that when a suit has been instituted on the presentation of a plaint, the summons be issued to the respondents in terms of Section 27 of CPC. The mandate of Section 26 of CPC is to issue summon when a plaint is presented, supported by an affidavit.
The stage for issuance of summons to the opposite party arises only when the Court is satisfied that the suit is 'duly instituted. A suit which is barred by limitation, or does not disclose any cause of action, i.e. if it is barred by provisions of Order VII Rule 11 of CPC or any other law cannot be said to be a suit which is duly instituted and Courts are not bound to issue summons in such cases and are within their power to dismiss the same in limine. The contention, therefore, that the learned Single Judge could not have dismissed the suit at the initial stage, has no merit - There is no dispute that while arriving at the conclusion under Order VII Rule 11 of CPC, the Court has to rely solely on the averments in the plaint and also the documents relied upon by the petitioner in support of his/her contentions in the plaint. It is a well settled principle of law.
The claim of the appellant that the period of limitation is to be reckoned from the date of cause of action i.e. when there arose "a need to challenge" the instrument, has no force in it. The period of limitation to challenge the instrument once start running does not stop. The plaint is bereft of any facts, showing as to why it should be reckoned from the date of alleged cause of action and not from the date of execution of the instrument.
There are no illegality or perversity in the impugned order. The impugned order needs no interference - appeal dismissed.
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2018 (5) TMI 2148 - SUPREME COURT
Offence of Forgery - attempt to transfer the property of complainant by executing a mortgage deed by using Power of Attorney - Section 465 of the Indian Penal Code, 1860 - HELD THAT:- Section 463 defines the offence of forgery, while Section 464 substantiates the same by providing an answer as to when a false document could be said to have been made for the purpose of committing an offence of forgery Under Section 463, Indian Penal Code. Therefore, Section 464 defines one of the ingredients of forgery i.e., making of a false document. Further, Section 465 provides punishment for the commission of the offence of forgery. In order to sustain a conviction Under Section 465, first it has to be proved that forgery was committed Under Section 463, implying that ingredients Under Section 464 should also be satisfied. Therefore unless and untill ingredients Under Section 463 are satisfied a person cannot be convicted Under Section 465 by solely relying on the ingredients of Section 464, as the offence of forgery would remain incomplete.
Keeping in view the strict interpretation of penal statute i.e., referring to Rule of interpretation wherein natural inferences are preferred, it is observed that a charge of forgery cannot be imposed on a person who is not the maker of the same. As held in plethora of cases, making of a document is different than causing it to be made. As Explanation 2 to Section 464 further clarifies that, for constituting an offence Under Section 464 it is imperative that a false document is made and the Accused person is the maker of the same, otherwise the Accused person is not liable for the offence of forgery.
This case on hand is a classic example of poor prosecution and shabby investigation which resulted in the acquittal of the Accused. The Investigating Officer is expected to be diligent while discharging his duties. He has to be fair, transparent and his only endeavour should be to find out the truth. The Investigating Officer has not even taken bare minimum care to find out the whereabouts of the imposter who executed the PoA. The evidence on record clearly reveals that PoA was not executed by the complainant and the beneficiary is the Accused, still the Accused could not be convicted.
The prosecution could not succeed to prove the offence of forgery by adducing cogent and reliable evidence. Apart from that, it is not as though the Appellant is remediless. She has a common law remedy of instituting a suit challenging the validity and binding nature of the mortgage deed and it is brought to our notice that already the competent Civil Court has cancelled the mortgage deed and the Appellant got back the property.
Appeal dismissed.
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2018 (5) TMI 2140 - BOMBAY HIGH COURT
Monetary relief under Section 20 of the D.V. Act - proceedings under the Protection of Women from Domestic Violence Act, 2005 are in the nature of criminal proceedings or not? - Whether or not the High Court can exercise its powers under Section 482 of the Code of Criminal Procedure, 1973 in respect of the proceedings under the Protection of Women from Domestic Violence Act, 2005? - HELD THAT:- A proceeding in which the party asserts the existence of civil rights conferred by the civil law or by statute and claims a relief for breach thereof would be a proceeding of civil nature and the proceeding which upon conclusion results in the imposition of sentences, such as death, imprisonment, fine or forfeiture of property would be a proceeding of criminal nature.
The provision made for designating the Court of Judicial Magistrate or the Metropolitan Magistrate as the Court where application under Section 12 (1) of the D.V. Act can be made, appears to have been done only with a view to provide teeth to the powers of the Court - Making of criminal and civil courts simultaneously as appropriate fora to obtain the reliefs provided under the D.V. Act is a certain pointer to the fact that the character of the proceeding is not dependent upon the nature of the tribunal which is invested with the authority to grant relief, but upon the nature of the right violated and the kind of relief that may be had.
Applicability of provisions of the Cr.P.C. and providing of criminal consequences for breaches are only indicative of the intention of the Parliament to make various civil remedies available under the D.V. Act more effective and meaningful. Parliament thought in it's wisdom that mere giving of remedies of civil nature or an order of injunction or prohibition for that matter, may not be sufficient to enable the aggrieved person realise the benefits of civil remedies. It were the speed and fear of the criminal procedure generally and the penal consequences visiting the respondent for some of his indiscretions would what really make a disobedient respondent behave - keeping with the vision of Parliament which sees domestic violence as a human rights issue and a serious impediment to development. Unless a wide array of remedies is provided, and it is possible only in civil law and not in criminal law and the remedies are also made speedy and effective, which is possible by infusing them with criminality, the issues of human rights and development cannot be addressed properly. This is what seems to be the overall scheme and theme of the D.V. Act.
Proceedings under the Protection of Women from Domestic Violence Act, 2005 are predominantly of civil nature and it is only when there is a breach of the protection order as is contemplated under Section 31 and failure or refusal to discharge duty without any sufficient cause by the protection officer as contemplated under Section 33, the proceedings assume the character of criminality.
Whether or not the High Court can exercise its power under Section 482 of the Code of Criminal Procedure, 1973 in respect of the proceedings under the Protection of Women from Domestic Violence Act, 2005? - HELD THAT:- The literal rule of construction is about what the law says and means, as understood from the plain language of the law and not what the law should and ought to be, as understood by taking recourse to the external aids of construction. It is also well settled that literal construction should not be excluded only because the consequences lead to some undesirable results or penalty - In the case of TATA CONSULTANCY SERVICES VERSUS STATE OF ANDHRA PRADESH [2004 (11) TMI 11 - SUPREME COURT], the Hon'ble Supreme Court has cautioned the Courts by observing that the Court should not be overzealous in searching for ambiguities or obscurities in the words which are plain.
Sub-section (1) of Section 28 clearly lays down that all proceedings taken under Sections from 12 to 23 and in respect of offence under Section 31 shall be governed by the provisions of Cr.P.C. except as otherwise provided in the D.V. Act. It means that only such of the provisions of the Act as would lay down a particular procedure to be followed by the Magistrate, which would have prevalence over the provisions of the Cr.P.C. to the extent of their inconsistency with the specific provisions of the D.V. Act.
A plain reading of Section 482 of Cr.P.C., which saves inherent power of the High Court, indicates that the power is to be exercised by the High Court not just to quash the proceedings, rather it has to be exercised for specific as well as broader purposes. The exercise of the inherent power has been delimited to such purposes as giving effect to any order under the Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. This would show that the inherent power of the High Court can be invoked not only to seek quashing of a proceeding, but also to give effect to any order under the Code or to challenge any order of the Court, which amounts to abuse of the process of the Court or generally to secure the ends of justice - This would show that this power is capable of being used by either of the parties and not just by the respondent seeking quashing of the proceedings under Section 12 of the D.V. Act. If this power is removed from Section 28 of the D.V. Act, the affected woman may as well or equally get adversely hit, and this is how, the very object of the D.V. Act may get defeated.
The reference is returned accordingly.
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2018 (5) TMI 2136 - ALLAHABAD HIGH COURT
Cancellation of registered sale deed - authority of law to cancel the registered sale deed, after a sale deed has been registered, under the provisions of the Registration Act, 1908 even if allegation of impersonation/fraud are made - allegations of fraud are essentially, an allegation of fact which need examination of oral or documentary evidence and can be adjudicated on the basis of evidence to be led by the parties before competent civil court or not? - Whether the judgment in the case of RAJ KUMARI VERSUS STATE OF U.P. THR. PRIN. SECY. DEPTT. OF REVENUE, LUCKNOW & OTHERS [2014 (3) TMI 1206 - ALLAHABAD HIGH COURT] or the judgment in the case of RADHEY SHYAM ARORA VERSUS STATE OF U.P. AND 6 OTHERS [2013 (11) TMI 1802 - ALLAHABAD HIGH COURT] lays down the correct law?
HELD THAT:- On going through the Division Bench judgments in Raj Kumari and Radhey Shyam Arora, we do not find any conflict in the conclusions arrived. In Raj Kumari, a Division Bench while examining the issue that whether an administrative authority while acting upon the government order dated 13.08.2013 could have cancelled a registered sale deed by relying upon a Full Bench judgment of Andhra Pradesh High Court in Yanalla Malleswari Vs. Ananthalu Sayamma, [2006 (10) TMI 517 - ANDHRA PRADESH HIGH COURT] held that once incumbents who have proceeded to execute the sale deed, have no authority to execute sale deed then rightful order has been passed and accordingly in the facts of the case, there is no occasion for this Court to take a different or contrary view as any interference would subscribe void transactions.
Whether a sale deed registered under the Act, 1908 can be cancelled or set aside by registering authority or by any other authority invoking administrative powers, if the registration is questioned on the count of impersonation/fraud? - HELD THAT:- The Government Order dated 13.8.2013 confers unfettered and arbitrary powers upon the Registering Authority in violation of the express provisions of the Registration Act and such Government Order cannot be invoked to annul a document. The Government Order dated 13.8.2013 is not only arbitrary but is wholly without jurisdiction and cannot be sustained.
If this Court while undertaking the powers under Article 226 of the Constitution of India interferes with the orders challenged in this petition then that would result into restoration of an illegality. It is well settled that powers under Article 226 of the Constitution of India must not be exercised if that restores and perpetuates an illegal order. Hon'ble Supreme Court in G. Venkateswara Rao Versus Government of Andhra Pradesh and others, AIR 1966 SC 828 concluded that though the State Government had no power to review its earlier order but if quashing of order reviewed would lead to restoration of an illegal order then High Court must refuse to exercise its extraordinary discretionary power. It is also well settled that the discretionary power vested with this Court is supposed to be invoked by taking into consideration a wide variety of circumstances, inter alia, the facts of the case, the exigency that warrants such exercise of discretion, the consequences of grant or refusal of the writ, the nature and extent of injury that is likely to ensue by such grant or refusal, etc. and further that no writ, order or direction is required to be given if that does not subscribe to justice or serves the cause of justice.
In the case in hand, as already stated, it is the position admitted even by the petitioner that the sale deed was registered in her favour subsequent to registration of sale deed in favour of respondent no. 4, Smt. Sheela Rai. In view of this admission, it would not be appropriate to invoke the powers under Article 226 of the Constitution of India in favour of the petitioner as that would restore an illegality. The writ petition, as such, deserves to be dismissed.
The writ petition, hence, is dismissed.
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2018 (5) TMI 2128 - DELHI HIGH COURT
Scope of Judicial Review - Withdrawal of a Request of Proposal issued by the Union Ministry of Defence (MoD), for procurement of forty-five (45) Bird Detection and Monitoring Radar Systems - Accrual of enforceable rights - HELD THAT:- A long line of decisions of this Court settles the scope of judicial review in matters relating to award of contracts by the State and its instrumentalities. The Supreme Court, in TATA CELLULAR VERSUS UNION OF INDIA [1994 (7) TMI 307 - SUPREME COURT] reviewed the law on award of public contracts and held that The Government must have freedom of contract. In other words, a fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi-administrative sphere. However, the decision must not only be tested by the application of Wednesbury principle of reasonableness (including its other facts pointed out above) but must be free arbitrariness not affected by bias or actuated by mala fides.
Again, in Master Marine Services Pvt. Ltd. v. Metcalfe and Hodgkinson Pvt. Ltd., [2005 (4) TMI 579 - SUPREME COURT], it was stated that the role of the Court is not to review or oversee the award of contract, on the merits of the decision, but rather consider whether the decision making was regular, legal, procedurally fair and untainted by mala fides.
On reading of the above judgments, it is clear that the courts can review a tender process or tender stipulation, on grounds of proven procedural irregularity. In judicial review, a court under Article 226 of the Constitution reviews the decision-making process, its legality and procedural regularity and not the merits of the decision of the executive agency. The principal decision maker is the administrative or public agency - the uniform judicial view has been that public law review of tender matters ought to be exercised, judiciously. Such judicial review must be restrained to ensure that the choice or decision is made "lawfully" and not to exercise oversight over whether choice or decision is "sound". The state cannot be compelled to enter into a contract with any entity and ultimately even in tender related cases, commercial considerations ought to be paramount.
In the present case, the Petitioner’ petition premised on its contention that it is the lowest bidder and therefore the Union MoD, should be directed to enter into a contract with it. This court is of the view however, that it is a settled principle of law that no vested right accrues on the lowest bidder and the government has the right to withdraw the bid with valid reasons - the MoD’ contentions that the Petitioner’ bid, if allowed to stand would have resulted in unfairness to other Indian bidders, because all of them tendered in Indian currency, whereas the Petitioner tendered in a manner that allowed it to hedge in foreign currency. This, according to MoD resulted in an unequal playing field, which compelled it to cancel and withdraw the bid.
The decision to award a public contract is not based merely on factors such asfulfilment of technical qualifications and financial viability of the offer of a given bidder but much more. The vital public interest is a necessary condition, which invariably informs every decision of the executive authority or agency that is to award the contract - this Court is satisfied that the withdrawal of the RFP dated 30.04.2012 is not arbitrary and fresh RFP issued dated 31.08.2016 does not call for any interference - petition dismissed.
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2018 (5) TMI 2121 - SUPREME COURT
Rejection of application of the Petitioners for registration and allocation of quota for the Hajj 2016 - rejection on the ground that they have not complied with certain clauses of the policy for the Private Tour Operators (PTOs) - HELD THAT:- The passage of time has made certain reliefs infructuous. The time period for conducting Hajj tours for 2016 as well as 2017 is over. Thus, even the alternative relief prayed for 2017 has become infructuous - The Petitioners cannot be left remediless. The mindless action of the Respondents in rejecting the eligibility of the Petitioners for the year 2016 on the very grounds on which they were exempted necessitates that the Petitioners should be entitled to damages in public law so that they are compensated, at least, to some extent for not having been able to carry on with their business on account of illegal action of the Respondents.
The principles of damages in public law have to, however, satisfy certain tests. In NILABATI BEHERA @ LALITA BEHERA VERSUS STATE OF ORISSA [1993 (3) TMI 355 - SUPREME COURT], it was observed that public law proceedings serve a different purpose than private law proceedings.
In the facts of the present case, the arbitrariness and illegality of the action of the authority is writ large. The Petitioners have been deprived of their right to secure the quota on a patently wrongful order passed for reasons, which did not apply to them and for conditions, which had been specifically exempted. What could be a greater arbitrariness and illegality? Where there is such patent arbitrariness and illegality, there is consequent violation of the principles enshrined Under Article 14 of the Constitution of India. The facts of the present case are, thus, undoubtedly giving rise to the satisfaction of parameters as a fit case for grant of compensation.
The amount for each of the Petitioners be remitted by the Respondents within two months from the date of this order failing which the amount would carry interest @ 15 per cent per annum apart from any other remedy available to the Petitioners - Petition allowed.
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2018 (5) TMI 2110 - CALCUTTA HIGH COURT
Seeking Injunction restraining the respondent authorities - breach on the part of the petitioners of the terms of the loan covenants entered with the State Bank of India - threatening to publish photographs, names and addresses of the petitioners in leading newspapers - HELD THAT:- From the documents annexed to the writ petition there is no doubt that the Company of which the petitioners are directors and guarantors (for the financial assistance availed of by the Company), have acknowledged and admitted their liability in respect of the credit facilities obtained from the respondent bank. The response of the Company to the notice under Section 13(2) of the SARFAESI does not dispute this liability. It is also clear from the impugned letter dated 19th November 2014, which is under challenge in this proceeding, that the Company had been advised to repay the loan amount by 10th December 2014 and that admittedly no steps have been taken by the Company thereafter to honour its financial obligations to the respondent bank. The company has instead filed a suit and an application before the Debts Recovery Tribunal in an attempt to push back their obligations to the bank.
The judgement of this Court provides a window of "Special Circumstances" when the bank can proceed with such coercive measures against borrowers who have committed deliberate default of the RBI Guidelines with mala-fide intention. This window cannot, however, be applied in the present case since, it cannot be from the material on record said that the Company has wilfully defaulted in its financial obligation to the respondents Bank or that the petitioner as Directors and Guarantors of the Company can be held liable for the conduct complained of on the part of the Company. The decisions relied on by the Bank with regard to the limited sphere of interference of a Court in relation to show-cause notices are not applicable since the impugned letter dated 19th November, 2014 cannot be construed as a show-cause notice per-se.
The interim order passed by this Court on 20th January, 2015 is confirmed.
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2018 (5) TMI 2097 - KERALA HIGH COURT
Maintainability of writ appeal - Seeking police to register a crime and investigate it - Criminal breach of trust - misappropriation breaking out in the open - misdeeds amounting to cognizable offences - police refused to register an FIR - criminal jurisdiction - principle of issue estoppel, first and foremost, affect the writ petition or not? - Permission to do away with the statutory remedies and, instead, take a straight recourse to judicial review? - Ratio v. Obiter v. Holding - Lalita Kumari - Are there any issues sub silentio? - Can a complainant disregard the alternative remedies provided under, say, the Criminal Procedure Code and, instead, insist on a writ remedy? - Refusal to Register a Crime-the Alternative Remedies.
Is the writ appeal maintainable? - HELD THAT:- Section 5 of the Kerala High Court Act mandates that an appeal shall lie to a bench of two judges from "(i) a judgment or order of a Single Judge in exercise of original jurisdiction), and (ii) a judgment of a Single Judge in exercise of appellate jurisdiction in respect of a decree or order made in exercise of original jurisdiction by a subordinate court." - there is no exclusion of the orders passed by a learned Single Judge in exercise of a criminal jurisdiction." - Given the emphatic enunciation of law by a co-equal Bench of this Court, it is held that the intra-court appeal is eminently maintainable.
Does the principle of issue estoppel, first and foremost, affect the writ petition? - HELD THAT:- The issue of estoppel stands merged, as observed by the Supreme Court, State of Jharkhand v. Lalu Prasad Yadav [2017 (5) TMI 490 - SUPREME COURT] in the principles of Autrefois acquit and Autrefois convict, both of which find enshrined in article 20(2) and section 300 Cr.P.C. Indeed, issue estoppel, a common law doctrine, has been well-entrenched and oft-applied to criminal proceedings. The courts in India, too, have applied this principle at all levels, Apex to trial courts - given the finding on maintainability in the next few paragraphs, this issue becomes academic. And academic issues need no adjudication. So we reckon that our finding on the threshold issue, alternative remedy, obviates an answer to this issue.
Does the Supreme Court in Lalita Kumari [2013 (11) TMI 1520 - SUPREME COURT] permit a complainant to do away with the statutory remedies and, instead, take a straight recourse to judicial review? - Pithily put, what is the holding of Lalitha Kumari? - HELD THAT:- The issue before the Supreme Court was this: is a police officer bound to register an FIR under section 154 of Cr.P.C., upon receiving any information relating to the commission of a cognizable offence or has he got the power to conduct a preliminary inquiry to test the veracity of such information before registering the crime? - Lalita Kumari's holding is simple and straight: If an aggrieved person approached the police complaining of a cognizable offence, they must register an FIR and promptly enquire into the crime, the arrest of the accused not being an essential step in that process.
Ratio v. Obiter v. Holding - HELD THAT:- Holding emerges when the ratio, the pure principle of law, is applied to the facts of a particular case. That is, a holding is what the court actually decides after combining the facts of a case with the legal principles it deduces in the context of that case - Ratio requires adherence to the extent possible, but the holding compels compliance fully. Stare decisis admits of no exception to a case-holding in the adjudicatory hierarchy.
Lalita Kumari - Are there any issues sub silentio? - HELD THAT:- Once an issue, though present by implication, has not been expressly dealt with and pronounced upon, the judgment on that issue remains sub silentio. Any issue, thus, rendered sub silentio cannot be treated as a precedent - Lalita Kumari, however, had no occasion to consider the issue we have now been confronted with: The alternative statutory remedies available to a complainant after the police's refusing to register an FIR. So we may safely conclude that Lalita Kumari does not obliterate, as it were, the alternative statutory remedies available to the aggrieved complainant.
Can a complainant disregard the alternative remedies provided under, say, the Criminal Procedure Code and, instead, insist on a writ remedy? - HELD THAT:- Despite the repeated attempts of some members failing to bring the police to the Church's door, Shine maintains that one complaint pending before the Magistrate does not affect his right to maintain another one on his own. In Pramatha Nath Taluqdar vs. Saroj Ranjan Sarkar [1961 (11) TMI 63 - SUPREME COURT], a three-Judge Bench of the Supreme Court has held that that there is nothing in the law prohibiting a second complaint on the same allegations when a previous complaint had been dismissed under s. 203 of the Code of Criminal Procedure. Indeed, Pramatha Nath deals with the second complaint by the same person upon having the first one dismissed. It does not apply here.
How Has the Impugned Judgment Proceeded? - HELD THAT:- We have already discussed Lalita Kumari and extracted its holding. We have also held that Lalita Kumari has not dealt with the remedies available to an aggrieved person on whose complaint about a cognizable offence the police have not acted. In fact, Lalita Kumari has only dealt with the issue whether the police could exercise their discretion and indulge in any preliminary enquiry before they register a crime. Therefore, the precedents speaking on a complainant's alternative remedies have not been set at naught. They still hold the field. That said, we must now examine the precedential position on that issue.
Refusal to Register a Crime-the Alternative Remedies - HELD THAT:- Clear and compelling are the judicial directions vis-à-vis an aggrieved person's approaching the High Court. But, disregarding the efficacious alternative-remedies under the Code, the complainants insisted that in Lalitha Kumari, a Constitution Bench has cleared the complainant's path of all statutory hurdles to approach the High Court, straight away.
Shine Varghese has faltered at the first hurdle-the alternative remedy, which he has on more than one count. That is, the impugned judgment suffers from legal infirmity and deserves to be set aside - writ appeal allowed.
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